The recent disclosure that the National Security Agency (NSA) has been tracking the Internet and phone activity of American citizens is about more than just government surveillance: It has profound implications for freedom of the press.
Guardian columnist Glenn Greenwald has fielded questions about his potential criminal liability for publishing information about NSA surveillance programs. After Greenwald wrote about secret documents leaked by former national security employee Edward J. Snowden, Meet the Press host David Gregory asked him: "To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn't you, Mr. Greenwald, be charged with a crime?"
This isn't just an idle question. Representative Peter King has called for Greenwald's prosecution.
The debate over Greenwald's possible prosecution comes on the heels of revelations that the government investigated reporters at two news organizations in connection to national security leaks. The Department of Justice seized two months' worth of phone records for some Associated Press reporters, and searched the emails and tried to track the movements of Fox News reporter James Rosen. In a court affidavit, the government described Rosen as a "co-conspirator" in a national security leak, after Rosen wrote an article saying that North Korea would conduct a nuclear missile test.
These events raise the question: Should journalists face criminal liability for reporting on secret government information?
While the Obama Administration has been particularly aggressive in cracking down on leaks -- and, as the investigations of the AP and Fox News show, reporters who write about leaks -- the issue of journalist protection is a longstanding one.
Under the Privacy Protection Act, government investigators cannot take documents and other materials from reporters that were gathered in the course of news reporting -- unless there is probable cause to believe the reporter actually committed a crime (or if seizure is needed to prevent death or serious bodily injury).
In 1971, the Supreme Court grappled with journalistic freedom in the Pentagon Papers case. The government wanted to prohibit the New York Times and the Washington Post from publishing secret documents regarding the Vietnam War--the ACLU filed an amicus brief supporting the newspapers' right to publish on free speech grounds. The Court allowed the newspapers to publish the documents. But because the case dealt with the government's attempt to thwart publication, the issue of whether the government could prosecute the media following publication of secret national security information remained.
In 2001, the Supreme Court ruled in Bartnicki v. Vopper that journalists could not be punished for publishing information illegally obtained by a third party when the information was of public concern. That decision, however, did not involve classified material, and it is uncertain whether it would apply to secret national security information.
But we may be entering a new era in which the government charges journalists with crimes - merely for gathering news.
In the case of Fox News, for example, the FBI alleged that the reporter had committed a crime: He was, according to a court document, responsible for violating the Espionage Act of 1917, the law the government uses to prosecute leaks. As Gabe Rottman of the ACLU Washington Legislative Office points out, the government's logic "would, quite literally, make virtually any question by a reporter implicating classified information a potential felony."
In recent years, lawmakers and officials have raised the possibility that reporting on secret national security issues could be a crime. In 2006, then-Attorney General Alberto Gonzalez said that journalists could potentially face prosecution for reporting on certain NSA surveillance. In 2010, three senators introduced a bill that would make publishing classified information regarding certain intelligence activities a crime. A senator also proposed sweeping legislation that would criminalize willful communication of any classified material by someone who isn't authorized to have that information. The proposals failed, but the tension between freedom of the press and national security remains.
And if Snowden continues to disclose national security information -- as WikiLeaks founder Julian Assange said he would -- this tension will only continue to increase.
We should be careful, though, when considering the government's claims about the threat to national security from publishing classified information. The government told the public and the U.S. Supreme Court that publishing the Pentagon Papers would threaten our national security. Nearly twenty years later, Erwin Griswold, who represented the government as Solicitor General, shared what the experience taught him:
I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat.... It quickly becomes apparent to any person who has consideration experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.
His words remain relevant. The freedom of the press fundamentally protects the right of We the People to know what our government is doing. The revelations by Greenwald about NSA surveillance not only address what the government does in our name, but what the government is doing to us.